Citation Nr: 9909135
Decision Date: 03/31/99 Archive Date: 04/06/99
DOCKET NO. 94-04 367 ) DATE
)
)
On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John M. Clarkson, III, Counsel
INTRODUCTION
The veteran had active service from October 1973 to April
1975. This case was previously before the Board of Veterans'
Appeals (Board) in June 1996. The Board denied service
connection for residuals of a head injury to include
concussion and headaches and determined that new and material
evidence had been submitted to reopen the claim of service
connection for an acquired psychiatric disorder. The claim
of service connection for an acquired psychiatric disorder
was remanded to the RO and is characterized as indicated on
the preceding page.
FINDINGS OF FACT
1. All available evidence necessary for an equitable
disposition of the claim of service connection for an
acquired psychiatric disorder has been obtained by the RO.
2. The veteran gave a history of medical treatment for
emotional problems during his service entrance examination;
military medical examiners noted his pre-service psychiatric
treatment and diagnosed schizophrenia during service.
3. An acquired psychiatric disorder clearly and unmistakably
existed prior to military service.
4. After an acute manifestation of the veteran's psychiatric
disorder during service, he returned to his previous level of
function; the manifestation was not caused by his routine
military duty.
5. The pre-existing psychiatric disorder did not increase in
severity during military service.
CONCLUSION OF LAW
An acquired psychiatric disorder preexisted the veteran's
service and the presumption of soundness at entry is
rebutted; the pre-existing psychiatric disorder was not
aggravated during service. 38 U.S.C.A. §§ 1110, 1111, 1137,
1153, 5107 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.303,
3.304(b), 3.306 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The service medical records show that, on July 1973 entrance
examination, the veteran reported a history of head injury,
frequent trouble sleeping, and treatment for emotional
problems at St. Francis Hospital. The examiner concluded
that the sleeping trouble was not disabling, and psychiatric
examination was negative for abnormalities. In July 1974,
the veteran was treated for complaints of adjustment
difficulties. The impression was adjustment problems, and
possible depression or sleep disturbance. On subsequent
mental health evaluation, the diagnosis was pre-psychotic
schizoid personality.
A February 1975 medical note reported that the veteran was
facing criminal charges and awaiting formal disciplinary
action. While in detention by the military police, he
started shouting and beating on the cell walls; he was
brought to the treatment facility for possible drug
withdrawl. He was then described as cooperative, well-
oriented and with appropriate affect. The impression was no
evidence of drug withdrawl.
Subsequently it was noted that the charges against him had
been dropped because of psychopathology. He had a history of
previous psychiatric hospitalization prior to enlistment,
following a motorcycle accident. His behavior was
dysfunctional, with frequent fights and inappropriate
responses to ordinary social behavior. The diagnosis was
immature sociopathic type under moderate stress. In March
1975, the veteran was treated for anxiety and agitation in
response to confinement. He was alert and oriented in all
three spheres, with no evidence of thought disorder or memory
disturbance. His speech was logical and goal-directed, and
his associations were tight. The impression was sociopathic
personality with impulse control problems.
An April 1975 medical board summary noted that the veteran
had been transferred from the cell block where he was
awaiting trial to the psychiatric unit. It was noted that a
discharge summary from St. Francis General Hospital in
Pittsburgh, Pennsylvania, reflected the veteran's
hospitalization from May to August 1972, with a diagnosis of
schizophrenic reaction, paranoid type. He was hyperactive,
rambling and circumstantial, with marked delusions and severe
loosening of associations. The medical board concluded that
the findings were consistent with a diagnosis of
schizophrenic reaction, and the medical board's diagnosis was
paranoid type schizophrenia, marked by severe deficits in
impulse control and significant deficits in social judgment.
The veteran's condition during hospitalization was described
as being hyperactive with significant deficits in his social
judgment so that his interactions were inappropriate. His
affect was elevated, but there was no abnormality in though
process with no loosening of associations, tangentiality, or
other positive findings. Thought content showed only mild
abnormalities with no clear hallucinations or delusions. His
ability to abstract, as indicated through similarities and
proverb interpretation, was at times within normal limits and
at times somewhat personalized and idiosyncratic. Most
apparent was a somewhat rambling, pressured speech, which was
associated with no looseness and which was entirely
understandable.
The diagnosis was schizophrenia, paranoid type, marked by
severe deficits in impulse control and significant deficits
in social judgment, not considered to have been incurred in
line of duty. The medical board concluded that the disorder
existed prior to service , not aggravated, and there was
minimal, external precipitating stress in the form of routine
military duty. The veteran was reported to be competent for
pay purposes and could distinguish between right and wrong,
although not able to adhere to the right. Also noted was a
diagnosis of chronic drug abuse, including a long history of
amphetamines, hallucinogenics and other street drugs, which
existed prior to service and was not service aggravated.
VA medical records dating from July and August 1992 show
treatment of the veteran's complaints of anxiety and
depression. A report of a March 1992 VA computer tomography
(CT) scan of the veteran's head was associated with the
claims folder in February 1993. The examiner noted the
veteran's history of aggressive behavior. CT scan of the
head was normal. VA medical records dating from September
1991 to December 1992 were also associated with the claims
folder in February 1993. These records reflect treatment of
the veteran for an adjustment disorder and anti-social
behavior, as well as continued drug abuse. When evaluated by
a VA psychologist in November 1991, the veteran's history was
deemed to be "of questionable reliability" due to his poor
mental status. At that time, the veteran attributed the
onset of psychiatric symptoms to an episode of physical abuse
by his father, when he was a teenager.
On a VA Form 9 submitted in January 1993, the veteran
asserted that, while in service during the summer of 1974, he
was driving an armored personnel carrier (APC) which had a
broken catch on its personnel access cover. He explained
that, while driving an APC, the driver stands upright with
the access cover open. When another vehicle in front of his
APC stopped suddenly, the veteran was required to stop
suddenly as well. The sudden stop caused the access cover to
fall onto his head, rendering him unconscious. The veteran
attributed the onset of his mental and physical disabilities
to this incident.
Additional service medical records were added to the claims
folder in February 1993. These records were largely
duplicates of the veteran's service medical records
previously submitted, and they include an examiner's
diagnosis of paranoid schizophrenia with onset at age 17.
On VA psychiatric examination in March 1993, the veteran gave
a history of school problems in childhood which the examiner
believed were suggestive of a learning disability. The
examiner noted that review of medical records indicated that
the veteran's first known psychiatric admission was at St.
Francis Hospital at age 17, where the diagnosis was
schizophrenic reaction-paranoid type. On evaluation, the
veteran's speech was slow, clear, and coherent, but he had a
tendency to lose his train of thought, digress and ramble.
Thought processes revealed no evidence of delusions,
hallucinations, or other psychotic symptoms. Thought content
was introspective, self-centered, and self-critical.
The diagnostic impressions included Axis I: mild, depressed,
bipolar disorder, Axis II: passive-aggressive personality
disorder, and a Global Assessment of Functioning (GAF) score
of 35. The examiner concluded that the medical records and
reports showed that the veteran had an obvious, pre-existing
psychiatric disorder, manifested in adolescence. The
examiner added that, while the veteran's condition
"worsened" during service, there was no reason to suspect
that such "aggravation" was the result of his military
service. On March 1993 VA general medical examination, the
veteran reported sustaining a head injury in service. The
examiner's diagnoses included head injury residuals, but no
psychiatric findings were noted or associated with the head
injury.
At a December 1993 hearing, the veteran repeated his
assertion that he sustained a head injury in service when an
APC access cover fell on his head. He testified that, prior
to service, he was treated at St. Francis Hospital for
emotional problems. He indicated that, after his head
injury, he could not seem to perform his job properly and he
felt that people were against him.
In the June 1996 remand, the Board directed that the veteran
be afforded a VA psychiatric examination to determine the
degree of impairment associated with his current psychiatric
disorder, and to determine whether the disorder increased in
severity as a result of his military service.
The veteran was afforded VA psychiatric examination in July
1996, at which time the examiner summarized the history of
the veteran's psychiatric disorder, as contained in the
records. The veteran reported that, during service, he
worked many hours in a very hot climate and did not sleep
well. This led to depression, with paranoia. The examiner's
overall clinical impression was bipolar disorder, depressed
type; which was considered to be in excellent remission
secondary to appropriate psychiatric treatment. A diagnosis
of adult attention deficit disorder was also thought to be
applicable. The Axis II diagnosis was antisocial personality
disorder, which had developed out of difficulties with
attention deficit disorder and the manner in which the
veteran had come into conflict with society, beginning with
his very abusive father.
The VA examiner indicated that was very clear that the
veteran had a psychiatric disorder of a serious nature prior
to service which was characterized by overtly psychotic
symptoms and described as a schizophrenic condition in
medical records. During service, he manifested a psychotic
disorder which military medical examiners diagnosed as
schizophrenia. The examiner concluded that the veteran's
psychiatric disorder surfaced again in a more acute form
while he was on active duty, and the examiner believed that,
in all likelihood, this exacerbation was "aggravated" by
conditions in which the veteran found himself: that is,
working seven days a week for months on end in extreme heat.
The examiner opined that it did not appear that the
psychiatric disorder increased in overall severity as a
result of military service, but was manifested in an acute
form similar to the exacerbation demonstrated prior to
service. The examiner then stated that the veteran's
psychiatric disorder, though pre-existing service, was
aggravated while on active duty.
In a January 1997 VA Form 646, the veteran's representative
cited the opinion of the examiner in the report of the July
1996 VA psychiatric examination and asserted that service
connection for an acquired psychiatric disorder was warranted
because the VA examiner's opinion demonstrated that the
veteran's pre-existing psychiatric disorder increased in
severity as a result of his military service.
In a February 1997 note, the RO indicated that the July 1996
VA examination was inadequate. The RO directed that the
examiner provide an opinion as to whether it is at least as
likely as not that bipolar disorder caused or aggravated any
other mental disorder or caused or aggravated polysubstance
abuse and addiction. The examiner was also directed to
clarify whether the exacerbation of the veteran's psychiatric
symptomatology which occurred during service resulted in a
greater degree of disability after the acute manifestations
had subsided or whether he returned to his pre-exacerbation
level of functioning.
On March 1997 VA psychiatric examination, the veteran
indicated that his father was very strict, negative and a
perfectionist, as well as verbally and physically abusive.
He reported having difficulty with school work, particularly
English and spelling, and his father would belittle him for
this. He had a job after school and this caused him to fall
asleep in class. He reported using alcohol and marijuana
with friends. He eventually became delusional and grandiose
and his father took him to a family doctor who, in turn,
referred him to a mental health clinic. He was hospitalized
for three months at age 17 at St. Francis General Hospital,
with a diagnosis of schizophrenic reaction, paranoid type;
and symptoms including delusions, looseness of association,
hyperactivity and rambling speech. He reported that, while
in the military, he used only marijuana and alcohol and did
not think this was a major factor in his difficulties.
The VA examiner noted several specific episodes of
psychiatric treatment included in the service medical records
reported above. The veteran indicated that he had held many
jobs since service, but had been unable to remain
consistently employed. He was inefficient due to anxiety
about performing adequately, as well as interpersonal
difficulties.
The VA examiner opined that, given the veteran's history of
psychotic and depressive symptoms, his psychiatric disorder
was more accurately described as bipolar II disorder,
depressed type, with episodic severe psychotic features. Due
to the fact that the veteran reported substance abuse prior
to the manifestation of any mental disorder, the examiner
believed it was unlikely that the bipolar disorder caused or
aggravated polysubstance abuse and addiction. As to whether
drug abuse during military service may have contributed to
the onset of the veteran's psychotic decompensation, the
nature of his disorder was thought to be such that he would
most likely have manifested an exacerbation at some point
anyway without appropriate, ongoing psychiatric treatment.
The examiner further concluded that, by the veteran's own
report, as well as by extensive records over the years, there
was a long history of interpersonal difficulties, poor
impulse control, with frequent fights and inappropriate
responses to ordinary social behavior. These behaviors were
stated to be features of what has been described as an
underlying personality disorder variably called schizoid or
antisocial in his records. The examiner opined that, after
acute manifestations of the veteran's psychiatric disorder
subsided, he returned to his pre-exacerbated level of
function. The examiner added that, while the veteran had
another exacerbation of psychiatric symptoms while on active
duty, there was little to suggest that such aggravation was a
result of what his service medical records described as
minimal routine military duty. Diagnoses included Axis I:
bipolar II disorder, depressed type, with episodic severe
psychotic features currently in partial remission with
medication and adult attention deficit disorder, Axis I:
personality disorder not otherwise specified, and Axis V: GAF
score of 35.
Subsequent to the March 1997 VA psychiatric examination of
the veteran, extensive additional evidence was added to the
claims folder. The evidence includes records showing that
the veteran injured his back in 1981 while employed at a
casino. He submitted a claim for worker's compensation in
connection with the accident and much of the evidence added
to the record is related to the back injury and the veteran's
worker's compensation claim. The evidence related to the
veteran's claim of service connection for an acquired
psychiatric disorder does not include a medical opinion
indicating that such disorder increased in severity during
service.
There was submitted a 1983 report by a private physician,
Leslie H. Gould, M.D., who reported the physical and
emotional abuse the veteran suffered in childhood from his
father. This physician found little to support the diagnosis
of schizophrenia, noting that there was evidence of mixed
anxiety and depression in a person of low self esteem. It
was noted that the veteran reported that he had emotional
problems in service and had been briefly treated in an Army
hospital with medication.
In !987, Lynn Gerow, Jr., M.D., wrote that his review of the
private medical records confirmed the presence of a
personality or character disorder with superimposed symptoms
of anxiety and depression. He stated that there was nothing
to support a diagnosis of schizophrenia, despite the prior
history, or of manic depressive illness. This physician
pointed out that given the veteran's character disorder, drug
abuse and drug dependency, a factitious disorder with
physical symptoms must be considered.
The additional evidence also includes an April 1992 report of
disability determination of the Social Security
Administration (SSA). The SSA disability determination
report contains a primary diagnosis of manic depression, with
secondary diagnoses including organic personality disorder,
adult attention deficit disorder, and antisocial personality
disorder. The SSA disability determination and associated
evidence do not include any medical opinion indicating that a
psychiatric disorder increased in severity during the
veteran's military service.
Analysis
The Board finds that the veteran's claim for service
connection for an acquired psychiatric disorder is "well-
grounded" within the meaning of 38 U.S.C.A. § 5107(a). That
is, he has presented a claim which is plausible.
The Board is also satisfied that all relevant facts have been
properly developed, and that no further development is
required to comply with the duty to assist the veteran
mandated by 38 U.S.C.A. § 5107(a). In this regard, the Board
notes that the veteran has been afforded multiple VA
psychiatric examinations to determine the nature and etiology
of any current psychiatric disorder. Additionally, extensive
medical evidence has been submitted in connection with the
veteran's claim. These records show a variety of psychiatric
diagnoses, and some disagreement among physicians as to
whether the schizophrenia diagnosed in service represented a
correct diagnosis. Nonetheless, for the purpose of this
decision, no further development is deemed necessary.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
A veteran who served during a period of war or during
peacetime service after December 31, 1946 is presumed in
sound condition except for defects noted when examined and
accepted for service. Clear and unmistakable evidence that
the disability manifested in service existed before service
will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137.
The veteran will be considered to have been in sound
condition when examined, accepted and enrolled for service,
or where unmistakable (obvious or manifest) evidence
demonstrates that an injury or disease existed prior thereto.
Only such conditions as are recorded in examination reports
are to be considered as noted. History conforming to
accepted medical principles should be given due
consideration, in conjunction with basic clinical data, and
be accorded probative value consistent with accepted medical
and evidentiary principles in relation to value consistent
with accepted medical evidence relating to incurrence,
symptoms and course of injury or disease, including official
and other records made prior to, during or subsequent to
service, together with all other lay and medical evidence
concerning the inception, development and manifestations of
the particular condition will be taken into account.
38 C.F.R. § 3.304(b). Additionally, during
inservice clinical evaluations of a pre-service history of
the disability for which service connection is claimed.
If it is determined that a disability present in service
existed prior to service, then the question of aggravation is
raised. In this regard, a preexisting injury or disease will
be considered to have been aggravated by service, where there
is an increase in disability during such service beyond
natural progress. This presumption of aggravation may be
rebutted by clear and unmistakable evidence. Aggravation may
not be conceded where the disability underwent no increase in
severity during service on the basis of all the evidence of
record pertaining to the manifestations of the disability
prior to, during and subsequent to service. 38 U.S.C.A.
§ 1153; 38 C.F.R. § 3.306.
In the field of mental disorders, personality disorders which
are characterized by developmental defects or pathological
trends in the personality structure manifested by a life-long
pattern of action or behavior, chronic psychoneurosis of long
duration or other psychiatric symptomatology shown to have
existed prior to service with the same manifestations during
service, which were the basis of the service diagnosis, will
be accepted as showing preservice origin. 38 C.F.R. § 3.303
(c).
Here, the veteran acknowledged on service entrance
examination that he was treated for emotional problems prior
to service. Military medical examiners noted his pre-service
history of psychiatric treatment, reviewed records of the
pre-service psychiatric treatment and diagnosed
schizophrenia. They concluded that the onset of the
psychiatric disorder was before service entrance. The
veteran himself has conceded the pre-service history of
psychiatric illness. Therefore, the Board finds that the
presumption of soundness on the veteran's entry into service
is rebutted by clear and convincing evidence of the existence
of psychiatric disability prior to service.
As to the issue of aggravation, the veteran has asserted that
an acquired psychiatric disorder increased in severity beyond
its natural progress during service. However, the question
of whether a psychiatric disorder increased in service is a
medical question and the Court has held that laypersons are
not competent to provide medical opinions. Layno v. Brown, 6
Vet. App. 465 (1994).
The July 1996 and March 1997 VA psychiatric examinations
contain medical opinions regarding "aggravation: of the
veteran's psychiatric disorder. On July 1996 VA examination,
the examiner concluded that, although the veteran's
psychiatric disorder preexisted service, it was
"aggravated" while he was in service. However,
notwithstanding the contention of the veteran's
representative that this opinion supports the veteran's
claim, the examiner's statement must be reviewed in the
context of 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306. Both
38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 establish that, for
disability compensation purposes, aggravation is an increase
in the severity of a disability beyond its natural progress.
Although the term "aggravation" was used in the examination
report, the examiner specifically opined that the veteran's
psychiatric disorder was manifested in service in an acute
form similar to a pre-service exacerbation, but it did not
appear that the disorder increased in overall severity as a
result of military service. That being said, it can only be
concluded that the examiner's remarks, which were internally
inconsistent, used the term "aggravation" in a way other
than that defined by the regulations and, most likely, as
meaning "exacerbation."
The Board also notes that the opinion of the examiner in the
July 1996 VA psychiatric examination that there were acute
manifestations of the psychiatric disorder during service was
based in part upon the veteran's reported history of having
been required to work seven days a week for months on end in
extreme heat. However, the veteran's report of his duties in
service is directly contradicted by the service medical
records; which include a specific finding by the military
medical board that the veteran had minimal, external
precipitating stress in the form of routine military duty.
These records also show that the exacerbation of psychiatric
symptoms in service occurred during the veteran's
incarceration after he was suspected of committing a crime, a
fact well known to the military medical board. The Board
concludes that the contemporaneous findings of the military
medical board about the nature of the veteran's military
duties are more plausible than the assertions made many years
after the fact by the veteran in the context of a claim for
disability benefits. The Court has held that a medical
opinion based on a factually inaccurate premise is not
entitled to probative value. Reonal v. Brown, 5 Vet. App.
458 (1993). Accordingly, insofar as the July 1996 VA
examination report relies upon a factually inaccurate history
provided by the veteran, it is entitled to little probative
weight.
Recognizing the inconsistency contained in the July 1996 VA
psychiatric examination, the RO directed that the veteran be
afforded an additional VA psychiatric examination. The March
1997 examiner specifically concluded that, while the veteran
had an exacerbation of psychiatric symptoms while on active
duty, there was little to suggest that aggravation was a
result of his routine military duty. In addition to
furnishing a medical opinion, the March 1997 examiner
carefully reviewed the veteran's medical records, made
clinical findings and explained the findings. The Board
finds that the March 1997 VA psychiatric examination is
entitled to greater probative weight than the July 1996 VA
examination.
The Board has also considered the numerous pieces of medical
evidence relating to post-service treatment of the veteran's
psychiatric disorder, and other disabilities, by both VA and
private medical care providers. These records, briefly
summarized above, do not tend to establish that any increase
in psychiatric disability occurred during service, albeit
mention is made in some of them to the fact that he did
receive treatment therein. They are of very limited
probative value. Likewise the veteran's testimony at his
hearing on appeal, in which he conceded pre-service
psychiatric treatment for emotional problems, and reported
ongoing treatment in service after allegedly experiencing a
head injury, is of limited evidentiary value, when compared
to contemporaneously prepared records. Moreover, the
veteran, as a layperson, is not shown to be qualified by
medical background or training, to have the expertise to
comment upon medical findings or provide a medical opinion
concerning the etiology, causation or course of the
psychiatric symptoms noted before, during and after military
service. His statements and contentions in this regard are
thus entitled to no probative weight. Layno v. Brown, 6
Vet.App. 465 (1994); Espiritu v. Derwinski, 2 Vet.App. 492,
494 (1992).
Taking all of the lay and medical evidence into account,
including evidence subsequent to the veteran's service, the
Board concludes that an acquired psychiatric disorder pre-
existed service and did not increase in severity during
service. As the preponderance of the evidence is against the
claim of service connection for an acquired psychiatric
disorder, the claim is denied.
ORDER
Service connection for an acquired psychiatric disorder is
denied.
N.R. ROBIN
Member, Board of Veterans' Appeals
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